In this column , I will discuss important company law case laws and intricacies surrounding the interpretation of Indian Company Law.

Sunday, October 2, 2016

REQUESTING THE GOVERNMENT OF INDIA TO RECOGNISE THE COMPANY SECRETARIES FOR GOODS AND SERVICE TAX CERTIFICATION / ROLE (GST).

REQUESTING THE GOVERNMENT OF INDIA TO RECOGNISE THE COMPANY
SECRETARIES FOR GOODS AND SERVICE TAX CERTIFICATION / ROLE (GST).

Section 203 of Companies Act 2013 read
with Companies (Appointment and Remuneration of Managerial Personnel) Rules,
2014, necessitated that every listed company and every other public company
having paid-up share capital of Rs 10 crores or more to appoint the Company
Secretary in whole-time employment. All Private companies and such public
companies having Paid-up share capital more than Rs 10 crores were required to
appoint a Company Secretary.

There are about 40,000 ICSI members as on date (both in practice and in
employment).Listed Companies and Public and Private
companies having share capital of more than Rs 10 Crores have been pursuing
elusive practices by not appointing company secretaries even though company
secretaries are available in excess of demand in the market. Registrar of
Companies and SEBI are not taking adequate steps to compel those companies
which are required to appoint company secretaries mandatorily to appoint
company secretaries and hence, due to this lacunae, young company secretaries who have obtained their
membership recently find it difficult to get employment opportunities.

After the implementation of GST, there will be dearth of professionals
for advising the assessees and to carry out the auditing and reporting to GST
authorities. If company secretaries are allowed to do various activities as in
the case Chartered Accountants under GST, they will be filling in the gap of
demand side of the professionals for the GST activities.

Chief advisor to the board of directors on best practices in
corporate governance

Securities Compliance and Certification Services

Responsible for all regulatory compliances of company

Finance & Accounting Services

Corporate s and strategic manager

Taxation Services & International Trade & WTO Services

The intention of the
Indian Government for the recognition and the promotion of the three
professional Institutes in India is to courage and develop the required professionals
in the respective field so that Indian corporate world and ordinary citizens
are benefitted due to their assistances in complying the provisions of the
corporate and commercial laws in India.

Hence, by recognising
the ICSI members in the GST at par with the Chartered Accountants will help to
address the likely shortage of professionals when GST is implemented throughout
India with effect from 1st April 2017.

It is submitted that
Company Secretaries are playing a critical role in corporate management as well
as in practice. Various state
governments have acknowledged the significant role being played by the
Practising Company Secretaries and authorised
them to do VAT Audit and to appear
before the appellate authority as the Authorised representative. Securities
Exchange Board of India (SEBI) has
acknowledged company secretaries as auditor/Internal auditor and the
Companies Act, 2013 also recognises the Company Secretaries for carrying out the Secretarial Audit of prescribed
class of companies.

The Institute of
Company Secretaries of India through its letter dated December 3, 2015 has
emphasised the need to recognise the company secretaries for carrying out
various activities under GST (Goods and Services Tax Law. ICSI has brought to
the notice to the Government of India Reports recognizes/authorises, Chartered
Accountants for the following certifications/role:

A.Issue of
Certificate certifying the fact of non-passing of the GST burden (Report for
GST on refund process).

B. Act as Authorised Representative in
the matter of registration under Goods and Service Tax Act (Report on GST
Registration).

C. Act as Authorised Representative
acting as an agent for the taxpayer (Report on GST Payment Process).

Company
Secretaries are well equipped and competent to carry out these certifications
and should also be authorised to certify and act as authorised representatives,
at par with other professionals.

In
view of the vast experience gained by ICSI members in tax laws both Direct and Indirect taxes and to
provide wider and cost effective scope for selection of professionals,
it is submitted that Company Secretaries be also authorised to act as authorised representative in
following areas under GST.

I
request the Prime Minister of India Mr Modiji and Mr. Arun Jaitley , Finance
Minister of India by giving necessary instruction to concerned department to
recognise the role of ICSI members for the certification , auditing and acting
as certified representatives of assessees under GST. This will go long way for
the development of company secretarial professionals in India and to attract
more talented people to the profession in the future.